DWI PRIMER

DWI has become a specialty area of the criminal law. DWI Practitioners have years of experience and normally teach and attend hours of seminars each year to keep abreast of charges in the law. Obviously any recitation of DWI law and procedure can only make you familiar with terms and concepts. Each case needs to be evaluated in depth by an attorney experienced in this specialty.

CHANCES FOR AQUITTAL

The Administrative Office of the Courts (AOC) statistics show approximately 18% acquittals on DWI cases each year. It is almost certain that 100% of these acquittals were obtained with competent counsel although statistics on this are not available.

That said, acquittal of DWI is a daunting prospect for a number of reasons. The Supreme Court has forbidden plea bargaining in DWI cases. The Courts have also directed Municipal Judges that they should not dismiss these cases for discovery violations and other procedural failures. The Judges and prosecutors must explain the reasons for any dismissal to their superiors. The AOC and other Court directives have inferred that acquittals are frowned upon. Attorney General, (AG), directives to the prosecutors make it very difficult to dismiss a case. Also, unlike any other case, a defendant can be convicted on the basis of the readings from a machine that cannot be cross-examined. And yet we win 18% outright statewide.

Most practitioners and clients consider convictions for less than the original charge to be victories as well. This can be a non-DWI suspension, a 3 month suspension rather than the mandatory 7 to 12 months, first offender treatment rather than a second or the removal of mandatory jail time. Using these criteria the success rate is much higher. A large number of my clients, varying between 35-45% and in a good year close to 50%, do experience “success” and find it worth the risk to at least attempt defending the charges. If there is a way out we will find it. The reason to retain my services is to see if there is a way out. But you must realize that even in a “good” year I do not succeed over 50% of the time.

AREAS OF POTENTIAL DEFENSE

A shotgun approach to DWI cases is normally the best strategy. Once a potential defect in the State’s case is discovered a more narrow attack can be launched. Therefore from the outset all issues, the stop, the arrest, the proper operation of the testing instrument, the proper certification of the operator as well as individual physical conditions that make you unique must be examined. Radio transmissions, CAD time
records, on board video and all documents must be preserved and obtained. Many locations are now on video from private cameras and these may show things the police wish hidden.

THE STOP

The police may only stop you on “articulable suspicion”. They need to be able to articulate what law you were breaking. You may eventually be acquitted of this violation but they must have a reasonable suspicion you were violating some law. Once you are stopped the police may ask to see your credentials and make observations of you and inside the car. Although most police think differently it is not illegal to drink and drive. It is only illegal if your ability to drive is impaired by an ingested substance. The police may ask simple questions including whether you had anything to drink. You do not have to answer but if you do not these inquires will continue anyway and if you smell of alcohol denying drinking will not help matters.

You may have been stopped in a DWI checkpoint. These roadblocks are unconstitutional unless they comply with very rigid pre-conditions. These blocks may be attacked on their underlying basis, the paper work, the staffing and their operation. Also other requirements may be missing because they are not in the station and therefore allow for attack.

Selective enforcement (discrimination) stops are very hard to prove. Certain towns are more apt to have this problem. Unless the street activity is on tape it is hard to get a Judge to find this Constitutional infirmity.

FIELD TESTING AND ARREST

The officers now must determine whether you are under the influence of alcohol or drugs. They try to accomplish this by observations of your behavior. They will note your hand movements, ability to find documents, the odor of your breath, the condition of your eyes and speech, etc. If you do well they may lie, if you do poorly you are in the same boat. They may ask simple questions or more direct ones such as “Have you had anything to drink?” There is no right answer to this. If you say no and they smell alcohol you are cooked, if you say yes they begin further testing or think about drugs.

Testing usually follows. All testing is done to see if you can follow directions as well as complete the test. The Alphabet and backward counting are examples. You must not only recite the request correctly but begin and end at the correct places. Psycho-physical tests are similar. It is just as important whether you start with the correct hand or foot, turn the correct way, say one thousand not just one or do not start until you are told, etc.

The police may also administer an eye test which allegedly coincides with your blood alcohol content. This test is not scientifically reliable and cannot be entered into evidence as proof in Court but it can be used by the officer to determine probable cause to arrest you. Similarly an Intoxilyzer can be used to determine if there is alcohol on your breath. The readings are not admissible but the result can add to probable cause.

If the officer arrest you all of his observations can be contested as well as his opinion that you were under the influence. These “probable cause” motions are difficult to win but are an avenue to contest the case.

THE BREATH TEST

If you are arrested you must take the breath test. Your implied consent was made when you received your driver’s license. You cannot refuse or have an attorney. You may have a blood test done after you are released at your own expense, but if you request this release they must give you the opportunity after they are through with you.

If you refuse test after the police read you the refusal law you have committed a violation that carries almost the same penalties as DWI and can be and often is in addition to any DWI penalties.

The test can be attacked by contesting the credentials of the operator, the credentials of the machine, the proper function of the machine, the proper operation of the test and innumerable other areas that cannot be listed simply in this article. You need to talk to an experience attorney. The state has recently introduced a new machine called a 7110 Alcotest. New attacks on this machine are being formulated weekly by experienced attorneys. The most recent area of attack concerns the data information contained in the units internal computer. This information is required to be downloaded and should be available for review. Prosecutors are reluctant to provide this information but are being forced to do so. The discs contain a wealth of information that may suppress the results from the machine.

The analysis of your performance on psycho-physical tests and information from the data download will likely require expert testimony on your behalf. This is expensive but may well be worth it if the case is defeated.

BLOOD TESTS

Blood tests are utilized when there are accidents or if drugs are suspected. Most “blood” cases can be defended more easily than breath test cases. Psycho-physical test may not have been done. You may refuse a blood test. The procedures must be followed or the results are barred. The lab information must be provided properly. Private blood test can contradict the State’s tests. In short an attorney is needed and quickly. The percentage of successful results increases dramatically in these types of cases.

WHY HIRE AN ATTORNEY

The penalties for conviction of DWI are so harsh that any relief in worth a defense. You should hire an attorney to see if you can fit into the successful result categories. You cannot succeed if you do not examine the case and push the State.

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